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October 1, 2008

More on Justice Alito's climb out of the cert. pool

I just noticed this Legal Times piece by Tony Mauro discussing Justice Samuel Alito notable (and in my view praiseworthy) decision to get out of the cert pool (first discussed here). Here are snippets from the piece:

Former clerks tell us he made the decision at the end of last term, roughly 2 1/2 years after joining the Court. "Justice Alito wants to be helpful to the other justices in identifying, among the thousands of petitions that come in, those that are worthy of the Court's attention," said Jay Jorgensen, a Sidley Austin partner who clerked for Alito on the 3rd U.S. Circuit Court of Appeals and for the late Chief Justice William Rehnquist. "The easier thing to do would be to stay in the pool. I applaud him for doing this." "The time was right," said another Alito clerk who asked for anonymity. "It's not the sort of thing you just step out and do in your first year. But he's become familiar with the system and he decided it was better to stay off."

Alito's change of mind may also have to do with the miniscule role that junior justices like Alito get to play in influencing which petitions get discussed at the Court's private conferences. Before those conferences, the chief justice sends around a memo specifying which among the hundreds or dozens of pending petitions should be placed on the "discuss list" for debate at the conference. Then, in descending order of seniority, other justices get to add their picks to the discuss list. But they rarely do, and by the time it gets down to the lowest in seniority, the conversation is essentially over. Cases not on the discuss list are on the "dead list," which means they won't be discussed -- and won't be granted. With Alito out of the pool, his independent choices for the discuss list may have more clout.

Among the interesting details here is the indication that Justice Alito was out of the pool all summer and the suggestion that he may be trying to have more power in shaping the Court's docket. As regular readers know, I think Justice Alito's considerable hands-on experience with federal criminal justice issues likely plays a role in his jurisprudence and thus likely would also play a role in his efforts to shape the Court's docket.

Especause I know more than a few defendants and lawyers (myself included) who are hoping the Supreme Court takes up more federal criminal justice issues, I am heartened and hopeful about what Justice Alito's important decision to get out of the pool might portend for the Supreme Court's work in the months and years ahead.